Legal Forum: Update on Taking a Knee with the Team

Dr. Dave Dagley, Professor Emeritus, University of Alabama and

Dr. Amy Dagley, Assistant Professor, University of Alabama at Birmingham

In 2008, we contributed for CLAS School Leader a commentary on a court case where a football coach resigned after his school district directed him to cease a 23-year tradition of prayer at pre-game meals and prayer on the field just prior to the games. The facts in that case, Borden v. School District, 523 F.3d 153 (3 rd Cir. 2008) were not generally in dispute and the outcome in favor of the school district were generally unsurprising and in accord with generally-understood law about prayer in school settings and the role of school employees in allowing the students to pray (yes, you may), leading the students in prayer (no, you may not), or participating in the prayer with students (no, you may not). Last month, at the close of its 2021-2022 term, the U.S. Supreme Court overturned precedent and the applicable rules of the Court in a case with similar facts, Kennedy v. Bremerton School District, No. 21-418 (Slip Opinion) (S.Ct., June 27, 2022). The Kennedy case is the subject of this commentary. We ask the reader to be advised that the Kennedy case is a 75-page opinion, and in light of changes in interpretation of the legal reasoning that applies—on many fronts, multiple professors are now feverishly writing law review articles to analyze this new case. Law review articles are typically over 100 pages long. We have but two pages to describe the case and add our thoughts about what it means to school leaders.

The facts as reflected in Justice Gorsuch’s majority opinion were that Kennedy, an assistant coach for the varsity and head coach for the junior varsity, made it a practice, after the football game was over and the players and coaches had shaken hands, to take a knee at the 50-yard line and pray quietly for approximately 30 seconds. Although Kennedy began the practice on his own, over time a few players asked whether they could pray alongside him. The record from the appeals court said that Kennedy’s response was, “This is a free country. You can do what you want.” The number of players participating gradually grew to include most of the team. These practices continued for over seven years. In the fall of 2015, the superintendent sent Kennedy a letter directing him to stop the practice. The school district’s position reflected a concern that

Kennedy’s actions while being a football coach would create a lawsuit in which the district would be sued for violating the Establishment Clause of the U.S. Constitution. Kennedy decided he would cease other practices, such as using religious references in speaking to the team and a pre-game prayer, but that he could not cease offering his prayer on the 50-yard line after the game. He continued, and the conflict between the school district and Kennedy widened into the community through the next several games. After the October 26 game, the district put Kennedy on administrative leave, and prohibited him from participating in any capacity in football program activities.

Kennedy sued in federal court, alleging violation of his First Amendment Free Speech and Free Exercise rights. He also asked the court for a preliminary injunction directing the district to reinstate him. The federal district court denied the motion, based upon the view that a reasonable observer would have seen Kennedy as leading an orchestrated session of faith. The Ninth Circuit Court of Appeal affirmed. The case went back to the lower court, in which the record developed more discussion on Kennedy’s Free Speech rights and case law under that lineage of analysis. Again, the appeals court denied Kennedy’s claims. The Supreme Court agreed to hear the case in early 2022, and issued an opinion last month. Justice Gorsuch wrote the majority opinion, and was joined in it by Chief Justice Roberts and by Justices Thomas, Alito, and Barrett. Justice Kavanaugh also joined the majority opinion, except in one small part, labeled Part III-B. Justice Sotomayor filed a dissenting opinion, joined in it by Justices Breyer and Kagan. Thus, most of the opinion would be described in the newspapers as a 6-3 decision.

The majority opinion held that the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in personal religious observance from governmental reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.

To reach this holding, Justice Gorsuch’s majority opinion first examined the record in light of the lineage of cases examining claims that the government is violating a plaintiff’s Free Exercise rights. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 879-881, directs that in situations where a plaintiff claims that government has burdened his sincere religious practice under a policy that is not neutral or generally applicable to all persons, the government must show a compelling governmental interest in order to stop the religious practice. Although the school district argued that a potential Establishment Clause lawsuit was a compelling interest, Justice Gorsuch’s majority opinion ruled that the district had failed to show such an interest.

Next, the majority opinion examined the record in light of cases about retaliation by government due to an employee’s exercise of Free Speech rights, citing two cases in that lineage: Pickering v. Board of Ed., 391 U.S. 563 (1968), and Garcetti v. Ceballos, 547 U.S 410 (2006). Pickering requires a court to balance the interests between the employee and the employer surrounding the speech in question. Garcetti places speech that is uttered pursuant to an employee’s official job duties outside the protections of the First Amendment. The majority opinion also invoked a rule from a third case in the lineage between Pickering and Garcetti, which states that speech about an issue of private concern is not protected from government retaliation, while speech about an issue of public concern returns the inquiry back to Pickering’s balance test. (While the opinion does not cite the case invoking the public versus private nature of the speech, the case is Connick v. Myers, 461 U.S. 138 (1983).) Justice Gorsuch’s majority opinion focused only on Kennedy’s speech when he prayed on the 50-yard line, three times after games late in the season, after the school district had issued him a letter with a directive not to do so. In the opinion of the majority of the Court, this was speech that was private speech and not pursuant to official duties, and protected by both the Free Exercise and Free Speech Clauses. Also, the majority overruled the continued use of the test for assessing a claim under the Establishment Clause provided by Lemon v. Kurtzman, 403 U.S. 602 (1971).

Justice Sotomayor’s dissenting opinion focused first and foremost on the facts in the record from the federal district court, the Ninth Circuit Court of Appeal, and the Supreme Court. Coach Kennedy’s speech was more than the words he uttered during three prayers after three football games. According to the dissent, Kennedy’s speech included a long history of invitations to his own team members, opposite team members, and coaches from both teams. As the school administration began dealing with what was quickly becoming a contentious issue in a diverse community across Puget Sound from Seattle, Kennedy’s speech included the use of social media and multiple media appearances to publicize his plans to pray at the 50-yard line at the upcoming homecoming game.

The Kennedy case reflects a conflict between three constitutional values: Free Speech; Free Exercise of Religion; and freedom from governmental overreach under the Establishment Clause. Each of the three have large bodies of legal rules developed over decades. The dissenting opinion criticized the failure of the majority opinion to address the Establishment Clause aspects of Kennedy’s actions, and to conflate the school district’s concerns to only whether it would get sued for violating the Establishment Clause. The majority also did not address Kennedy’s actions in the context of interruptions to performing his duties as a coach, the impact of his actions on school programs, the impact of his actions on violations of school policy regarding public access to the field, and the impact of all his actions on the total football program. Only from the dissenting opinion did we learn that the head coach, a veteran with 11 years in the role, resigned from his position, citing fears of violence against him or his staff after Kennedy’s media appearances, and three of five other assistant coaches did not reapply to coach the next year.

As a result of this recently-released decision from the Supreme Court, what do we recommend to school leaders in their practice? We have been taught to think about legal rules always in light of the facts. If you have a situation that is exactly identical to the situation described by Justice Gorsuch in the majority opinion, where an assistant coach habitually performs a demonstrative prayer on the football field, baseball field, or 18 th hole of the golf course immediately after a game or match, and there are no further facts to add, then you might be able to anticipate a similar outcome.

We recommend that any changes that are made in your schools as a result of this decision are small and incremental. Don’t move in any direction too abruptly. The decision doesn’t appear to overturn existing, longstanding decisions about church and state issues. It certainly doesn’t allow a teacher to open a class with prayer or a principal to hire only teachers from her church. Changes in church-state law arising from this decision will occur only during a long period of time, as existing practices get challenged, or new practices invite action from a plaintiff, and the courts will attempt to incorporate this case in decision-making. A long-term trend may be greater allowance for individual religious exercise and therefore the need for school leaders to be more accepting of individual differences in religious expression.